Citation Nr: 0814484 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 02-14 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for enucleation of the right eye, choiroidal melanoma, to include as a result of exposure to ionizing radiation. 2. Entitlement to service connection for prostate cancer, to include as a result of exposure to ionizing radiation. 3. Entitlement to service connection for bleeding ulcers, to include as a result of exposure to ionizing radiation. 4. Entitlement to service connection for hypertension, and a heart condition, to include as a result of exposure to ionizing radiation. 5. Entitlement to service connection for a sinus condition, to include as a result of exposure to ionizing radiation. 6. Entitlement to service connection for spine arthritis, to include as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active service from December 1950 to December 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision of the Regional Office (RO) in Lincoln, Nebraska, which denied the veteran's claims of entitlement to service connection for "enucleation of the right eye, choiroidal melanoma," prostate cancer, bleeding ulcers, hypertension, a heart condition, a sinus condition, and spine arthritis, with all claims to include as a result of exposure to ionizing radiation. In July 2007, the veteran was afforded a hearing before the undersigned who is the Acting Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). To the extent that the RO listed the issues for each one of the disabilities being claimed as three separate claims, i.e., on a direct basis, under 38 C.F.R. § 3.309(d), and under 38 C.F.R. § 3.311, the Board has determined that the issues are more accurately stated as listed on the cover page of this decision. FINDINGS OF FACT 1. The veteran does not have enucleation of the right eye, choiroidal melanoma, as a result of his service. 2. The veteran does not have prostate cancer as a result of his service. 3. The veteran does not have bleeding ulcers as a result of his service. 4. The veteran does not have hypertension, or a heart condition, as a result of his service. 5. The veteran does not have a sinus condition as a result of his service. 6. The veteran does not have spine arthritis as a result of his service. CONCLUSION OF LAW 1. Enucleation of the right eye, and choiroidal melanoma, were not incurred or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.316 (2007). 2. Prostate cancer was not incurred or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.316 (2007). 3. Bleeding ulcers were not incurred or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.316 (2007). 4. Hypertension, and a heart condition, were not incurred or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.316 (2007). 5. A sinus condition was not incurred or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.311, 3.316 (2007). 6. Spine arthritis was not incurred or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.316 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that he has "enucleation of the right eye, choiroidal melanoma," prostate cancer, bleeding ulcers, hypertension, a heart condition, a sinus condition, and spine arthritis, as a result of his service, as well due to exposure to ionizing radiation during service. In various states submitted in support of his appeal and in testimony presented at his July 2007 Board hearing, the veteran has asserted that his claimed disabilities resulted from his exposure to ionizing radiation during onsite participation in a test involving the atmospheric detonation of several nuclear devices. He argues that film badges were either not issued, or not properly used, and that decontamination procedures were either not followed or were inadequate. I. Claims Based on Ionizing Radiation Exposure Service connection for disability which is claimed to be attributable to ionizing radiation exposure during service can be accomplished in three different ways. First, there are [specific] types of cancer which will be presumptively service connected if manifested in a radiation exposed veteran. 38 U.S.C.A. § 1112(c). Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Rucker v. Brown, 10 Vet. App. 67, 71 (1997) (citing Ramey v. Brown, 9 Vet. App. 40, 44 (1996); Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994)). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(3)(ii) (2007). The veteran had active duty between December 1950 and December 1952. In a letter, dated in December 2000, the Defense Threat Reduction Agency (DTRA) stated that the veteran is a confirmed participant of Operation TUMBLER- SNAPPER, as a member of the 216th Chemical Service Company ("216th CSC"), while he was assigned to the Rocky Mountain Arsenal in Colorado. Given the foregoing, he is shown to have qualifying service in a radiation-risk activity as discussed at 38 C.F.R. § 3.309(d)(3)(iv)(G) (noting that Operation TUMBLER-SNAPPER took place between April 1, 1952 through June 20, 1952). The veteran's service medical records show that in February 1951, he received treatment for eye symptoms. The report notes conjunctivitis, acute, bilateral. The veteran's separation examination report, dated in December 1952, shows that his sinuses, eyes, ophthamoscopic examination, pupils, ocular motility, heart, and genitourinary system, were all clinically evaluated as normal. In an accompanying "report of medical history," the veteran denied having had eye trouble, "ear, nose or throat" trouble, sinusitis, "palpitation or pounding heart," high or low blood pressure, "stomach, liver, or intestinal trouble," "tumor, growth, cyst, cancer," or "arthritis or rheumatism." Two lay statements from C.W.L., received in about September 2005 and July 2007, show that the author asserts that he served with the veteran, that their unit was tasked with using Geiger counters to measure radioactivity following nuclear blasts, that they were not issued dark glasses, that they were issue no protective equipment for their respiratory systems, that cancers and premature deaths are common among former members of the 216th CSC, and that the veteran had problems with his right eye during service. A. Right Eye and Prostate Cancer The post-service medical evidence consists of VA and non-VA treatment reports, dated between 1970 and 2007. This evidence shows that the veteran was diagnosed with right ocular melanoma in about 1990. See letter from private physician, J.R.F., M.D., dated in April 1996. Private treatment reports show treatment for prostate symptoms beginning in 2000, with diagnoses of prostate cancer. The Board first notes that neither of the claimed disabilities are among the diseases that warrant presumptive service connection, as listed at 38 U.S.C.A. § 1112 (c)(2)(A- P) (West 2002). Accordingly, service connection on a presumptive basis is not warranted. The Board notes that both choiroidal melanoma and prostate cancer are radiogenic diseases. See 3.311(b)(2) (xiii) and (xiv). However, 38 C.F.R. § 3.311 does not provide for presumption for service connection for radiogenic diseases. Rather, this regulation provides special procedures for evidentiary development and adjudication of a claim. Implicit in the regulation is the requirement for evidence of a medical nexus between the exposure to the ionizing radiation and the current disability. In accordance with 38 C.F.R. § 3.311, in December 2000, the RO obtained a radiation dose estimate from the DTRA. In January 2001, the RO forwarded the case to the Director of the Compensation and Pension Service, who requested an opinion from the Under Secretary for Health as to the relationship between the veteran's prostate cancer, and choroidal melanoma, and his exposure to ionizing radiation during service. In February 2001, in an Advisory Opinion in accordance with 38 C.F.R. § 3.311, the Director of the Compensation and Pension Service, citing a February 2001 medical opinion from the Under Secretary for Health and a review of the evidence in its entirety, expressed unfavorable opinions as to the claims for choroidal melanoma, and prostate cancer. However, as a result of a May 8, 2003 report from the National Research Council (NRC), VA determined that reconstructed dose estimates should be provided to VA by the DTRA. The NRC study contained findings critical of upper bound radiation doses for atmospheric test participants and Hiroshima/Nagasaki occupation forces prepared by DTRA, and that it found that radiation doses prepared by DTRA may have underestimated the amount to which some veterans were exposed. In March 2004, the DTRA revised its estimates for the veteran, and determined that the veteran had received an external dose of 1.5 rem, an upper bound dose to the prostate of 1.5 rem, an internal committed dose to the prostate of 0.01 rem, an upper bound committed dose to the prostate of 0.1 rem, a skin dose to the face of 7 rem, and an upper bound skin dose to the face of 13 rem. In May 2004, the RO forwarded the case to the Director of the Compensation and Pension Service, who requested an opinion from the Under Secretary for Health as to the relationship between the veteran's prostate cancer and his exposure to ionizing radiation during service. That same month, an opinion was received from VA's Chief Public Health and Environmental Hazards Officer (CPHEHO), who is a physician, noted that the veteran had reviewed and accepted the DTRA scenario that was utilized for his dose reconstruction. The CPHEHO stated that the Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) Science Report Number 6, 1988, does not provide screening doses for prostate cancer, and that the sensitivity of the prostate to radiation carcinogenesis appears to be relatively low and not clearly established. (citation omitted). The CPHEHO stated that, based on a computer software program from the National Institute for Occupational Safety and Health, there was a 99- percentile value for the probability of causation for prostate cancer of 1.35 percent. The CPHEHO concluded that it is unlikely that the veteran's prostate cancer can be attributed to exposure to ionizing radiation in service. The CPHEHO further noted that that veteran has reported exposure to various chemicals during service, and that a 1991 study did not identify an association between exposure to Mustard Gas or lewisite and prostate cancer. (citations omitted). The CPHEHO concluded, "Therefore we are not able to state that it is at least as likely as not that the veteran's prostate cancer is related to chemical exposure in service." In May 2004, in an Advisory Opinion in accordance with 38 C.F.R. § 3.311, the Director of the Compensation and Pension Service, citing the medical opinion from the Under Secretary for Health and a review of the evidence in its entirety, expressed the opinion that "there is no reasonable possibility" that the veteran's prostate cancer resulted from exposure to ionizing radiation during service. With regard to the claim for choroidal melanoma, in a June 2006 report, the DTRA determined that the veteran had received a mean total external gamma dose of 1.5 rem, an upper bound gamma dose of 1.7 rem, a mean total external neutron dose of 0.0 rem, an upper bound neutron dose of 0.0 rem, a mean (eye) cornea dose beta plus gamma of 3.9 rem, and an upper bound total eye (cornea) dose beta plus gamma of 6.1 rem. In an August 2006 opinion from the CPHEHO noted that the causes of ocular melanomas are unknown, and that exposure to radioactive substances as well as various other genetic and environmental factors may result in an increased risk for this malignancy. (citation omitted). The CPHEHO stated that, based on a computer software program from the National Institute for Occupational Safety and Health, there was a 99th-percentile value for the probability of causation of 7.34 percent. The CPHEHO concluded that it is unlikely that the veteran's ocular melanoma can be attributed to exposure to ionizing radiation in service. The report notes that for comparison purposes, the cancer model for melanoma of the skin was also used, which resulted in a 99th-percentile value for the probability of causation of 30.28 percent. In August 2006, in an Advisory Opinion in accordance with 38 C.F.R. § 3.311, the Director of the Compensation and Pension Service, citing the aforementioned medical opinion from the Under Secretary for Health and a review of the evidence in its entirety, expressed the opinion that "there is no reasonable possibility" that the veteran's choroidal melanoma resulted from exposure to ionizing radiation during service. Given the foregoing, service connection for chorioidal melanoma, enucleation right eye, and prostate cancer, is not warranted under the procedures as set forth in 38 C.F.R. § 3.311. In reaching its decision under 38 C.F.R. § 3.311, the Board has taken the factors as listed in 38 C.F.R. § 3.311(e) into consideration, as mandated by the Court in Hilkert v. West, 11 Vet. App. 284 (1998). Specifically, the Board notes the following: the veteran is a male; he was about 24 years of age when he was exposed to radiation; the medical evidence does not indicate a family history of the claimed conditions; the earliest indication of ocular melanoma comes approximately 38 years after service, at approximately age 62; the veteran's first diagnosis of prostate cancer comes approximately 48 years after service, at approximately age 72; and there is no verified record of post-service exposure to carcinogens. B. Hypertension, Heart Condition, Sinus Condition, and Spine Arthritis With regard to the claims for bleeding ulcers, hypertension, a heart condition, a sinus condition, and spine arthritis, none of these claimed disabilities are among the diseases that warrant presumptive service connection, nor are they radiogenic diseases, as listed at 38 U.S.C.A. § 1112 (c)(2)(A-P) (West 2002 & Supp. 2005); see also 38 C.F.R. §§ 3.309(d), 3.311(b)(2) and (3). Furthermore, the veteran has not cited or submitted competent scientific or medical evidence that any of these claimed conditions are radiogenic diseases. See 38 C.F.R. § 3.311(b)(4). Accordingly, there is no basis for service connection on either a presumptive basis or under the provisions of 38 C.F.R. § 3.311. II. Claims for Service Connection on a Direct Basis Given the foregoing, the only possible basis for service connection for any of the claimed conditions is on a direct basis. In Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit determined that service connection can be pursued under the general VA compensation entitlement system. Id. at 1043; see also Rucker, 10 Vet. App. at 71. In this case, the veteran has asserted that service connection is warranted for all of the claimed disabilities on a direct basis, to include as a result of exposure to Mustard gas, lewisite, or other toxic gases, during service at the Rocky Mountain Arsenal. The National Personnel Records Center (NPRC) has determined that the veteran's service medical records are not available and may have been destroyed in a 1973 fire. See NPRC statements, dated in October 2000 and May 2001. The RO also attempted to obtain additional information from the National Archives and Records Administration (NARA), but in October 2006, NARA reported that they had no relevant records. The veteran's discharge indicates that his unit was the 216th Chemical Service Company (216th CSC). The claims files include a unit history that was apparently obtained from the U.S. Army, which indicates that the 216th CSC was based at Rocky Mountain Arsenal between October 1950 and 1959. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). Service connection may also be granted for malignant tumors, arthritis, cardiovascular-renal disease, including hypertension, and ulcer, peptic (gastric or duodenal), when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a presumptive basis for certain conditions (including chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung cancer (except mesothelioma), squamous cell carcinoma, or a chronic form of laryngitis, bronchitis, emphysema, asthma or chronic obstructive pulmonary disease or acute nonlymphocytic leukemia) if, during active military service, the veteran had full-body exposure to nitrogen or sulfur mustard or Lewisite and subsequently develops the condition. 38 C.F.R. § 3.316. The post-service medical evidence consists of VA and non-VA treatment reports, dated between 1970 and 2007. The veteran's service medical records, and the year of onset of his choriodal melanoma and prostate cancer, were discussed above. In addition, a private treatment report, dated in February 1995, notes "ulcer," and sinusitis. A private magnetic resonance imaging (MRI) study, dated in June 2000, contains an impression noting arthritic changes of the lumbar spine. Private treatment reports, dated in 1999, show treatment for heart symptoms that included an irregular heartbeat, with a notation of "significant risk factors for coronary disease." These reports also note that he had high cholesterol, a history of hypertension, and that he had stopped taking his hypertension medications six months before. The impressions were ventricular ectopy, benign, brief episodes of atrial tachycardia, diabetes mellitus, hypertension, and hyperlipidemia. The Board finds that the claims must be denied. The earliest medical evidence of any of the claimed conditions is dated in 1990, which is about 38 years after separation from service. This lengthy period without treatment is evidence that there was not a continuity of symptomatology, and it weighs against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no competent evidence showing or indicating that any of the claimed conditions are related to his service. With regard to 38 C.F.R. § 3.316, although the veteran is shown to have served at the Rocky Mountain Arsenal, and even assuming arguendo that he was shown to have been exposed to toxic gas, none of the claimed conditions are among the listed conditions of 38 C.F.R. § 3.316 for presumptive consideration. Finally, there is no evidence of spine arthritis, ulcers, hypertension, or a tumor of the eye or prostate, that was manifest to a compensable degree within one year of separation from service to warrant service connection under 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. III. Conclusion With respect to the veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The veteran is competent to state that he has right eye, prostate, ulcer, hypertension, heart, sinus, and spine symptoms. However, unlike varicose veins under Barr, or a dislocated shoulder under Jandreau, the issues on appeal are based on the contention that enucleation of the right eye/choiroidal melanoma, prostate cancer, ulcers, hypertension, a heart condition, a sinus condition, and spine arthritis, are related to service, to include as due to exposure to ionizing radiation, and these are not contentions capable of lay diagnosis. See Espiritu; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board has considered the many articles submitted by the veteran. This evidence includes an article on ocular melanoma, which states that the exact cause is unknown, but that exposure to ultraviolet light (UV) rays, either from the sun or sunbeds, increases the risk. The article does not mention exposure to radiation. Another article discusses the history of the Rocky Mountain Arsenal, and indicates that it stores and transports a wide variety of toxic chemicals. A manuscript written by A.G.P., as well as a transcript of A.G.P.'s testimony before the Senate in 1999, notes the role of the 216th CSC in nuclear testing, and states that there were a number of inadequacies in regulating radiation exposure, and in decontamination protocols. Several articles discuss proposed changes to the law for veteran's benefits for veterans of the Cold War Era. However, none of these articles discuss the relationship of exposure to radiation to any of the claimed conditions, and the literature is so general in nature, and nonspecific to the appellant's case, that the Board affords it little probative weight. It therefore does not provide a sufficient basis to find that there is a causal relationship between the veteran's service and any of the claimed conditions. See e.g. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In reaching these decisions, the Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. VCAA The Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). VA has made all reasonable efforts to assist the veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed the government's duties to assist him. The Board notes that in letters, dated in September 2000 and March 2001, the veteran was sent letters that do not appear to satisfy VA's duty to assist as interpreted under Pelegrini. However, in a letter, dated in December 2006, the veteran was notified of the information and evidence needed to substantiate and complete the claim. The December 2006 VCAA notice did not comply with the requirement that the notice must precede the adjudication. However, any defect with respect to the timing of the VCAA notice in this case was nonprejudicial. There is no indication that the outcomes of the claims have been affected, as all evidence received has been considered by the RO. The veteran has been provided a meaningful opportunity to participate effectively in the processing of his claims, as he has been afforded the opportunity to submit additional argument and evidence, which he has done, and he addressed the issues at a hearing before the Board in July 2007. For these reasons, the timing of the VCAA notice was not prejudicial. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). During the pendency of this appeal, the Court further redefined the requirements of the VCAA to include notice that a disability rating and an effective date for award of benefits would be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No further notice is needed as to any disability rating or effective date matters. The veteran was afforded sufficient notice in March 2006, and in any event, as the claims have been denied, any questions as to the disability rating or the appropriate effective date to be assigned are moot. Therefore, VA's duty to notify the appellant has been satisfied, and no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). The Board further finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the veteran's claims files. The RO has obtained the veteran's service medical records, as well as VA and non-VA medical records. The RO has attempted to obtain the veteran's service records from the NPRC, however, the NPRC indicated that his records are not available. The RO also attempted to obtain information from NARA, and the Radiation Standards and Dosimetry Laboratory, without success. However, all appropriate development under 38 C.F.R. § 3.311 has been carried out, to include obtaining a radiation dose estimate, and an etiological opinion, where appropriate. To the extent that the issues include claims that service connection is warranted on a direct basis, although the veteran has not been afforded examinations, and etiological opinions have not been obtained, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, the service medical records show that the veteran was treated for conjunctivitis on one occasion in February 1951 (prior to participation in Operation TUMBLER- SNAPPER), there is no evidence to show any subsequent treatment during his remaining (approximately) one year and nine months of service, and no eye disorders were noted in his separation examination report. There is no record of treatment for any of the other claimed disabilities during service. The earliest evidence of post-service medical treatment for any of the claimed disorders is in 1990, which is about 38 years after separation from service. There is no competent evidence to show that any of the claimed conditions are related to his service. Given the foregoing, the Board finds that the standards of McLendon have not been met. See also 38 C.F.R. § 3.159(c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Simply stated, the Board finds that the service and post service medical record provides evidence against these claims. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for enucleation of the right eye, and choiroidal melanoma, is denied. Service connection for prostate cancer is denied. Service connection for bleeding ulcers is denied. Service connection for hypertension, and a heart condition, is denied. Service connection for a sinus condition is denied. Service connection for spine arthritis is denied. ______________________________________________ DAVID WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs